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JJT
12-12-2004, 06:27 PM
Washington County : Inmates get faster access to judge

BY MICHELLE BRADFORD

Posted on Sunday, December 12, 2004

URL: http://www.nwanews.com/story/adg/101647

FAYETTEVILLE — Anyone arrested in Washington County probably won’t rot in the county jail.

Washington County judges consistently set low, attainable bail, defense attorneys say.

But for those who can’t afford bail or to hire an attorney to address it, the average wait behind bars before seeing a judge has been 30 days.

Last month, the 8 th U.S. Circuit Court of Appeals upheld a $95,000 judgment to former inmate, James M. Hayes, for 38 days he spent in a Conway jail before seeing a judge.

The ruling in Hayes v. Faulkner County has prompted liability attorneys to warn Arkansas counties to get their jail inmates before a judge within 72 hours of arrest.

A timely first appearance — one without "unnecessary delay" — is required by Rule 8.1 of the Arkansas Rules of Criminal Procedure.

That’s not a problem in counties where courts operate daily or two to three times each week.

But in Washington County, judges often address probable cause and bail for inmates from their offices or chambers or over the phone on weekends and holidays.

The arrangement doesn’t meet the "appearance" requirement of Rule 8.1., said Denny Hyslip, Washington County public defender.

In response, Washington County has begun holding initial-appearance hearings three times a week — on Monday, Wednesday and Friday. Before the new policy, some inmates didn’t see a judge until arraignment — 30 days after arrest. Usually, those were the inmates who couldn’t afford an attorney.

Washington County’s new 72-hour policy is an adjustment for jail staff, said sheriff’s Capt. Randall Denzer. "We’re responsible for getting the inmates before a judge and making sure he has all the necessary paperwork beforehand," Denzer said. "The requirement has actually been around forever. Now, all of the sudden, we’re following it."

THE REQUIREMENTS Hayes was arrested on trafficrelated warrants in Vilonia. But because Vilonia court convened only once a month, he wasn’t taken before a judge for 38 days — despite a flurry of grievances he filed with the jail about the delay. Federal law says that a person arrested without a warrant must be brought before a judge within 48 hours to determine if enough probable cause exists to justify the arrest.

The law is different when someone is arrested on a warrant, because arrest warrants are issued by judges who already have substantiated probable cause.

Washington County consistently meets the 48-hour requirement for a review of probable cause, said John Threet, chief deputy prosecutor.

With that met and judges setting attainable bail, many inmates don’t care about an initial appearance, defense attorneys say. "No one’s pushed the issue in Washington County because the judges are so responsive to bail requests," Fayetteville attorney W. H. Taylor said. "You look at what the inmate wants. He wants to get out of jail. He doesn’t give a squat about seeing a judge."

At an initial appearance, a judge informs the inmate of certain rights — to remain silent, to have an attorney and communicate with family. It’s also a chance for the inmate or his attorney to ask for a bail reduction, said Little Rock attorney John Wesley Hall. "It initiates the start of your defense," said Hall, treasurer of the National Association of Criminal Defense Lawyers. "It gets the ball rolling."

In Washington County, an inmate who can’t afford an attorney isn’t assigned a public defender until arraignment. Before the 72-hour policy, that meant an inmate could wait 30 days before a face-to-face with a judge, and matters like bail weren’t addressed until then. "Unless they had a private attorney to go over to judge and say, ‘Will you re-consider bail?’ It didn’t happen until arraignment," said Hyslip, the public defender.

COMPLIANCE Case loads and judge availability affect counties’ practices about initial appearances. In Benton County, judges address probable cause and meet initial-appearance requirements at a single in-person hearing. It occurs within 48 hours of arrest. The Hayes ruling won’t bring changes there, Circuit Judge Tom Keith said. "We don’t believe it’s an issue here because we already see defendants — whether they’re arrested with a warrant or without — within 48 hours or less," Keith said.

Benton County adopted the policy after it was sued in 1999 and paid damages to seven former inmates who had spent excessive time in jail. Pulaski and Sebastian counties, too, already meet probable cause and initial hearing requirements within 48 hours.

The federal appeals court in Hayes didn’t say what periods constitute an unnecessary delay, but it said that 38 days is too long.

Mike Rainwater, a Little Rock attorney who represents 42 counties on jail issues, is calling for a 72-hour policy. He’s mostly concerned about smaller courts that convene once or twice a month.

Rainwater said he has no idea which Arkansas counties besides Washington are changing to comply with the 72-hour directive. A defense attorneys’ group believes Washington County is the only county in the state that hasn’t been holding initial appearances within days of arrest, said Mike Hodson, a Fayetteville attorney and board member with the Arkansas Association of Criminal Defense Lawyers. "That’s been the consensus at our meetings," Hodson said. Washington County’s new policy will include another change: Come Jan. 1, arraignments will be held within 15 days of arrest, rather than 30 days.

THE FALLOUT The Hayes ruling puts the responsibility for complying with Rule 8.1 on sheriff’s offices. The appeals court found that the Faulkner County sheriff had an independent duty to override the judge.

In the past, the remedy for violating Rule 8.1 was to suppress evidence in the case. Judges have thrown out confessions when finding police stalled a defendant’s initial appearance in order to elicit an incriminating statement.

Now, the Hayes case has opened the door for civil damage claims, said Washington County Attorney George Butler.

Faulkner County was ordered to pay Hayes $49,000 in damages and $46,929.50 in attorney fees. "The case has gotten our attention," Butler said. "It’s the law now in the 8 th Circuit [region]."